With the Confirmation of James E. Trainor III, the Federal Election Commission (FEC) can function again. But warring Ideologies among its Members raise Questions about what it can Accomplish.
Even before the Coronavirus Pandemic hit the U.S. and forced millions of Americans to stay at home, the Top Floor of the FEC was quiet. Three of the Six Commissioners’ Offices sat empty. Stacks of Green Paper accumulated, detailing Hundreds of Enforcement Matters on which the Agency was Powerless to Act.
The Commission, America’s Election Watchdog, has essentially been on ice for months. There are Six Seats on its Board, and the Bylaws require at least Four for the Agency to Function. But the Board has had just Three Members since September 2019. As the 2020 Election has ramped up, the Independent Regulator has been Unable to hold Hearings, offer Advice to Campaigns about how to follow the Law, Open or Close Investigations, or issue Penalties.
That changed on Tuesday when the Senate Confirmed a Fourth Member, James E. Trainor III, a Republican Lawyer from Texas. President Trump’s Nomination of Trainor, who goes by Trey and who worked for the 2016 Trump Campaign, marked a Departure from the Tradition of Presidents Nominating Commissioners in Pairs, typically from Different Parties.
While some cheered the Symbolic Revival of the Agency, others Criticized what they called underlying Structural Problems at the FEC, along with a less Vigorous Approach to Enforcing Election Law, that have delivered a de facto Win to Campaign Finance Deregulation over the Last Decade.
Even with Four Commissioners, the body may end up frequently Deadlocked, given that taking Action will require Unanimity among the Four: now Two Republicans, One Democrat, and an Independent who largely aligns with the Democrat.
Over the Decades, the Agency has balanced Regulation and Enforcement of the Law with Administrative Duties, Policing Limits on Campaign Contributions, Publishing Campaigns’ Financial Disclosures, and Investigating potential Illegal Spending by Candidates.
Campaign finance Laws were tied to the Justice Department’s recent Criminal Charges against Two Soviet-born Businessmen, Associates of Trump’s Personal Lawyer, Rudolph W. Giuliani, as well as to the 2018 Conviction of Trump’s Former Personal Lawyer Michael D. Cohen.
In a Confirmation Hearing earlier this year, Democrats pressed Trainor to Recuse himself from All Potential matters concerning the Trump Campaign. Trainor Declined to Commit to such a “blanket recusal,” saying he would Consult an Ethics Lawyer on relevant matters as they arise.
Trainor’s Three Colleagues at the FEC have been serving on Terms that Expired years ago, but they are Permitted to continue on until a President and the Senate Replace or Re-Nominate them.
Unable to Conduct Investigations or Impose Penalties over the last Nine months with too Few Commissioners, the Agency has continued to Process Financial Disclosures detailing how much Candidates have Raised and Spent this Election Cycle. With Trainor in place, it will again be able to hold Public Meetings, which it last did in August 2019. The Commission will also be able to Vote on how to Respond to Pending Lawsuits against the FEC. Its Inability to do so this Spring prompted a Federal Judge to take the Extraordinary step of issuing a Default Judgment against the Agency in a Case.
The FEC will also Address a Backlog of Recommendations from its Staff Lawyers, who have continued their Work over the Past Nine Months and Briefed the Three Commissioners Monthly. There is 350 matters on the Enforcement Docket. 227 matters are awaiting Votes and that the Five-year Statute of Limitations was ticking down on some Cases and jeopardizing the Ability of the FEC to Pursue them.
Trump’s Decision to nominate only Trainor provoked Criticism from Democrats like Senator Amy Klobuchar (D-MN) who said the President had Broken Precedent by Not putting forward Two Nominees. “It is unacceptable that Republicans are abandoning the tradition of advancing nominees in bipartisan pairs,”.
Some Lawmakers have proposed Sweeping Changes to the Agency. In 2019, the House Passed a Bill that would, among other things, establish an Odd Number of Five Commissioners, to prevent Deadlocks, and Create an Advisory Panel of Retired Federal Judges, Election Lawyers, and Members of Law Enforcement to Recommend Potential Commissioners to the president. That Bill has Stalled in the Senate.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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